Whether the plaintiff who received a false tax invoice constitutes good faith and negligence

The evidence presented by the Plaintiff alone was insufficient to recognize that the Plaintiff was unaware of the fact that the supplier of the instant tax invoice entered differently, and that there was no negligence.

Article 39 of the Value-Added Tax Act

2016Guhap67692 Revocation of Disposition of Imposition of Value-Added Tax

AA

D Head of the tax office

May 10, 2017

June 28, 2017

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The imposition of value-added tax of KRW 1,688,820, value-added tax of KRW 1,688,820, value-added tax of KRW 1,251,160, value-added tax of KRW 2, 2013, value-added tax of KRW 5,111,270, value-added tax of KRW 2, 2013, and value-added tax of KRW 501,570 for the first year of 2014 shall be revoked by the former Defendant for the Plaintiff on January 26, 2016.

1. Details of the disposition;

A. From July 28, 2010 to Suwon-si, the Plaintiff operates a mutual retail store in the name of 65 degrees from the 65th place of the address of the shop in △△-gu.

B. The Plaintiff received a tax invoice of KRW 53,583,773 (hereinafter referred to as “instant tax invoice”) in the aggregate of the purchase prices from △△ chain Co., Ltd. during the taxable period of value-added tax from the second to the first period of the year 2012 (hereinafter referred to as “△△ Group”). Based on the above evidence Nos. 4-1 to 4, the Plaintiff reported and paid value-added tax calculated after deducting the input tax amount from the Plaintiff’s output tax amount for each of the above taxable periods. D regional tax office from April 2015 to May 2015, it decided that the instant tax invoice was false tax invoice, and notified the Defendant of the instant tax invoice, and on January 26, 2016, the Defendant disposed of KRW 1,68, value-added tax, value-added tax, value-added tax, value-added tax, value-added tax, value-added tax, KRW 820, 2013, KRW 15,2105, KRW 16,2015.

D. On April 18, 2016, the Plaintiff sought revocation of the instant disposition from the Commissioner of the National Tax Service, but the Commissioner of the National Tax Service dismissed the Plaintiff’s request for examination on June 28, 2016 (Evidence A2 and 3) (Evidence A2 and 3).

A. The plaintiff's assertion

1) The Plaintiff operates the liquor wholesale chain in collaboration with the representative of SS Logistics Co., Ltd. (hereinafter referred to as “SS logistics”), and the Plaintiff received a proposal from SS logistics and a single company, which in fact causes to be supplied with alcoholic beverages from △△ Chain Chain, and accordingly, received alcoholic beverages equivalent to the supply price of the instant tax invoice from the △△ Chain chain. The Plaintiff was unaware of the fact that the instant tax invoice was false, and was not negligent in not knowing that it was a false tax invoice, and thus, the instant disposition was unlawful.

2) The instant disposition is a small retail store in front of the apartment complex, and the Plaintiff is placed in a situation where it is difficult for the Plaintiff to receive the payment of the value-added tax in addition to the instant disposition. Therefore, since the universal public interest, which is to prevent tax evasion, is more valuable than the damages the Plaintiff would incur, the instant disposition is in violation of the principle of proportionality.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination on the Plaintiff’s assertion of good faith and without fault [the above-mentioned A-1]

1) Article 39(1)2 of the Value-Added Tax Act provides that where all or part of the requisite entry items under Article 32(1)1 through 4 are not entered or mistakenly entered in a tax invoice or import tax invoice issued, the input tax amount shall not be deducted from the output tax amount, and Article 32(1)1 of the Value-Added Tax Act provides that “the transcript number and name or title of the supplier, etc.” as one of the requisite entry items of the tax invoice.

According to the above provisions, the actual supplier and the supplier of a tax invoice who are supplied with another tax invoice may not deduct or refund the input tax amount unless there are special circumstances, such as the absence of negligence on the part of the actual supplier and the unaware of the fact that the supplier was unaware of the name of the tax invoice. Furthermore, the fact that the supplier was not negligent in not knowing the fact that the supplier was unaware of the name of the tax invoice ought to be attested by the person who asserts the deduction or refund of the input tax amount (see, e.g., Supreme Court Decision 2012Du

2) In the instant case, the following facts can be acknowledged in full view of the purport of the entire pleadings in the statement Nos. 1, 2, 3-1, 3-2, and 4-1, 4-4.

A) △△ Chain, a supplier of the instant tax invoice, was established on August 4, 1987 for the purpose of running the sales business, etc. of alcoholic beverages, and was supplied to the supermarket, etc. in Gyeonggi-do, which owns a liquor brokerage license (B) and its shareholders consisting of BB and their family members (B) (Evidence 1).

B) The S Logistics is mainly a company engaged in wholesale business such as food and miscellaneous goods against Schlage, and only has a liquor retail license without a liquor brokerage license, and the landA, the representative director of which owns 100% of the shares of SS logistics (No. 3-2).

(c)S logistics supplied a considerable portion of alcoholic beverages supplied from 2012 to 2014 to retail stores, including the Plaintiff, by supplying them to the Plaintiff, etc., and by being issued a tax invoice in which △△△ chain directly supplied alcoholic beverages to the above retail stores by △△△ Chain Chain, the de facto wholesale business was operated. The instant tax invoice was also issued in the above way (as referred to in subparagraph 3-1, 2).

D) In the course of trading alcoholic beverages, △△ chain used the “Wbank” as a computer program, and entered the actual transaction amount into the said program. During the period from No. 2 to No. 12014, 2012, the value of alcoholic beverages supplied to the Plaintiff by △△ chain was “0 won” (No. 3-2 and No. 4-1 to No. 4).

3) The facts acknowledged as above: ① the Plaintiff has been operating Smarket since July 2010, the general liquor and retail trading method, and the actual condition and risk of transactions in the name of the Plaintiff appears to have been known; ② the Plaintiff ordered the instant tax invoice to the SS logistics rather than △△ chain, which is indicated as a supplier; ② the amount of alcoholic beverages supplied is also paid to the SS logistics; ③ the purpose of the business, the representative and the structure of shareholders are entirely different companies; ③ the Plaintiff is merely asserting that △△ Chain Chain Chain and SS logistics were believed to have been the end of SS logistics; and the Plaintiff did not submit evidence to deem that the Plaintiff was making efforts to confirm their relations with the above two companies. In light of the above, the evidence submitted by the Plaintiff is insufficient to acknowledge that “the Plaintiff was unaware of the fact that the supplier of the instant tax invoice was written differently from the fact, and was not aware of it, and there was no other evidence to support this portion of the Plaintiff’s assertion.”

D. Determination as to the Plaintiff’s assertion of violation of the principle of proportionality [the above-mentioned 2]

Article 39(1)2 of the Value-Added Tax Act provides that where all or part of the requisite entry items under Article 32(1)1 through 4 are not entered in the tax invoice or import tax invoice issued, or are entered differently from the fact, the input tax amount shall not be deducted from the output tax amount. In light of the form and text of the provision of the Value-Added Tax Act and the text thereof, the instant disposition based on the above provision is a binding act. Thus, the Plaintiff’s above assertion premised on the instant disposition is without merit.

3. Conclusion

The plaintiff's claim is without merit, and it is dismissed. It is so decided as per Disposition.